*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20941 

 ______________________

NATURAL GAS PIPELINE CO. OF AMERICA, ET AL.,

Plaintiffs-Appellees,

v.

ENERGY GATHERING, INC., ET AL.,

 Defendants,

 and 

NAVARRO CROWSON,

Movant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas 

(CA-H-88-3202)

_________________________________________________________________

September 18, 1996

Before KING, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

 Navarro Crowson appeals the denial of his third motion

for release from confinement and motion to vacate a contempt

order. We vacate the order of the district court.
 

1The background of this case is set out in Natural Gas

Pipeline Co. v. Energy Gathering, Inc., 2 F.3d 1397 (5th Cir.

1993) (a related case involving review of a civil contempt order

issued against Crowson’s attorney).

2

I. BACKGROUND1

Crowson took bribes and illegal kickbacks on natural gas

sale contracts in the mid 1980s while working for Natural Gas

Pipeline Company (“Natural Gas”). After being indicted in

federal court, Crowson pled guilty to charges of mail fraud

arising out of one of these kickback schemes. In 1991, Crowson

had two substantial default judgments rendered against him, for a

total of over 6 million dollars in damages. Following the

judgments, Crowson’s judgment creditors sought to discover the

location and extent of Crowson’s assets. Because of Crowson’s

failure to respond to post-judgment discovery, the district court

entered a contempt order, ordering that Crowson be confined to

jail indefinitely until he purged himself of his contempt. A

week later, Crowson entered into an agreed order which required

that he produce all of his financial and business records and

that he answer the interrogatories and requests for production

that had previously been served upon him.

Upon being conditionally released under the terms of the

agreed order, Crowson did not cooperate with discovery and

collection efforts. Instead, he hid assets and removed documents

from his accountant’s file. Crowson then fled to Mississippi,

filed for bankruptcy, and checked into a hospital to avoid arrest
 

2Crowson filed an amended motion for release and a motion to

vacate the order of contempt on May 16, 1994. In addition to the

§ 1826 ground, he argued that he should be released because his

confinement had become punitive and because he was “uncoercible.” 

The district court did not address the additional grounds.

3

by the U.S. Marshal Service. Ultimately, the court entered an

order revoking the conditional release and directing that Crowson

be returned to indefinite confinement. Crowson has been

incarcerated since August 28, 1992. 

Several months after he was incarcerated, Crowson filed his

first motion requesting that he be released, on the ground that

forcing him to comply with the court’s order would violate his

Fifth Amendment right against self-incrimination. Crowson

appealed the denial of this motion, but his appeal was dismissed

for want of prosecution. 

On February 18, 1994, almost eighteen months after he was

taken into custody, Crowson filed his second motion for release

from confinement. Crowson argued that he should be released

based on the eighteen month limitation on confinement in the

Recalcitrant Witness Statute. 28 U.S.C. § 1826(a) (1994).2 The

court denied this motion on May 27, 1994, holding that the

eighteen month statutory limitation was inapplicable because it

applies only to contempt arising out of grand jury proceedings

and not to a post-judgment refusal to disclose assets. Natural

Gas Pipeline Co. v. Fritz, 853 F. Supp. 236, 237 (S.D. Tex.

1994). Crowson did not appeal.
4

In July 1994, the court granted summary judgment in favor of

Winnie Pipeline Company and Southeastern Marketing Company

against Crowson and his co-defendant Kenneth Patterson in a

consolidated case. The judgment held Crowson and Patterson

liable for an additional 7.6 million dollars. Crowson filed a

Notice of Appeal and sought leave to proceed in forma pauperis,

which the district court denied. Crowson appealed the denial,

but his appeal was dismissed. Although this court subsequently

reversed the district court’s July 1994 grant of summary judgment

against Crowson’s co-defendant Kenneth Patterson, Crowson was not

a party to that appeal.

On September 26, 1995, Crowson filed his third motion for

release from confinement and motion to vacate the order of

contempt. The motion urged the court to “reconsider its

position” as to the applicability of the Recalcitrant Witness

Statute, as well as its holding that Crowson waived his Fifth

Amendment privilege. Crowson also made several other arguments:

that he is subject to confinement forever, that he has done all

he can to purge himself of his contempt, and that he is entitled

to relief because his confinement has become punitive. He

concluded by asking for his immediate release or, alternatively,

for a hearing to determine his eligibility for release. The

court denied the motion in a one-line order, without giving any

reasons for its decision. Crowson now brings this appeal.
 

3In their treatise, Wright, Miller, and Cooper note that

instead of dismissing the appeal, the Ninth Circuit should have

affirmed the district court’s decision on the ground that a

motion to vacate cannot be used to secure review of the

underlying order. 15B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE § 3917 n.70 (Supp. 1995).

5

II. JURISDICTION

Crowson appeals a final decision by the district court

refusing to release him from confinement or to vacate the

contempt order. The court has jurisdiction to hear this appeal

under 28 U.S.C. § 1291. Natural Gas’s argument that the court

has no jurisdiction, based on United States v. Wheeler, 952 F.2d

326 (9th Cir. 1991), is without merit. In Wheeler, the district

court issued a contempt order against Wheeler because he refused

to provide the relevant books and records requested in an IRS

investigation. Id. at 326-27. Wheeler did not appeal the order. 

Instead, he later filed an affidavit, which the district court

treated as a motion to vacate the contempt order, in which he

claimed that the requested records never existed. Id. at 327. 

The district court denied the motion and Wheeler appealed. The

Ninth Circuit held that it lacked jurisdiction to hear the case

because “a district court’s order refusing to vacate an

underlying contempt order is nonappealable when the ground on

which the vacatur is sought existed at the time the contempt

order was entered and the contemnor failed to appeal timely from

that order.” Id. Assuming arguendo that Wheeler is rightly

decided,3 it is nevertheless inapposite. Crowson’s third motion
6

contains several grounds which did not exist at the time the

contempt order was entered, and it is these issues that we

consider on appeal.

III. DISCUSSION

A. Standard of Review

A court of appeals reviews a district court’s order denying

a Rule 60(b) post-judgment motion for abuse of discretion. 

Browder v. Director, Ill. Dep’t of Corrections, 434 U.S. 257, 263

n.7 (1978). On such an appeal, the court should restrict itself

to addressing only the district court’s action in denying the

motion and should not review the underlying judgment. Id.; 

Trinity Carton Co. v. Falstaff Brewing Corp., 816 F.2d 1066, 1070

(5th Cir. 1987); 15B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE § 3916, at 351 (1992). 

B. Issues Resolved in Prior Motions

Crowson raised five issues in his third motion for release

from confinement and motion to vacate the original order and

raises a sixth issue on appeal. First, he urged the district

court to reconsider its judgment on his earlier motions, in which

he asserted claims under the Recalcitrant Witness statute and the

Fifth Amendment. In Natural Gas Pipeline Co. v. Fritz, 853 F.

Supp. 236 (S.D. Tex. 1994), the district court held that 28

U.S.C. § 1826 applies only to witnesses testifying before a grand
7

jury, not to the actual parties in a lawsuit. Id. at 237. 

Because Crowson failed to appeal this ruling, it became the law

of the case. The district court’s ruling on the Fifth Amendment

issue is also the law of the case because Crowson’s appeal of

that ruling was dismissed. 

Crowson gives no reasons on appeal as to why the district

court abused its discretion in refusing to reexamine its original

orders. Instead of “reveal[ing] the traditional equities

favoring relief from the judgment,” Trinity Carton, 816 F.2d at

1070, Crowson only argues that the original decisions were wrong. 

In essence, Crowson is trying to use this appeal to review the

underlying judgments. We do not review underlying judgments on

an appeal of a denial of a Rule 60(b) post-judgment order. Id.

C. New Issues 

Crowson asserted for the first time in his third motion that

he is subject to confinement forever because he “may well have”

entrusted the bookkeeping to his attorney and, thus, he may not

know the nature and location of his assets. The district court

correctly disposed of this assertion in denying the third motion. 

Crowson should have made this argument at the time the contempt

order was issued. He cannot now seek to use this motion to

review the contempt order. 15B CHARLES A. WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 3916 at 364 (1992).
 

4Although we do not usually consider arguments raised for

the first time on appeal, we note that the Fifth Circuit reversal

did not occur until after the district court’s order. In the

interest of forestalling another appeal, we address Crowson’s

argument at this time.

8

Crowson claimed in his third motion that he has done all he

can to purge himself of his contempt. Crowson must offer

something more, however, than his own self-serving statements to

satisfy his burden of production, and this he failed to do. In

United States v. Sorrells, 877 F.2d 346 (5th Cir. 1989), a case

involving similar facts, this court held that “[u]nless and until

[the contemnor] complies with the enforcement order, or meets his

burden of producing credible evidence showing that he is

presently unable to comply, [he] remains in contempt of the

court’s order.” Id. at 352. Thus, the district court correctly

disposed of this issue.

In his appellate brief, Crowson argues for the first time

that the January 4, 1996 reversal of the district court’s grant

of summary judgment in favor of Winnie Pipeline and Southeastern

Marketing relieves him of further liability.4 The Fifth Circuit

reversal of the summary judgment as to Kenneth Patterson in this

case does nothing to relieve Crowson of further liability. 

Crowson was not a party to the appeal, so the original judgment

is still valid as to him.

D. The Thom Analysis
 

5Although Crowson raised this issue in his amended second

motion for release from confinement, he is not barred from

raising it now because of the ongoing nature of the claim. See

Kilgoar v. Colbert County Bd. of Educ., 578 F.2d 1033, 1035 (5th

Cir. 1978) (“Subsequent conduct, even if it is of the same nature

as the conduct complained of in a prior lawsuit, may give rise to

an entirely separate cause of action.”).

9

Finally, Crowson asserted in his third motion that the

passage of time has demonstrated that he will never comply with

the contempt order, thus making his confinement punitive rather

than coercive.5 Crowson relies on United States ex rel. Thom v.

Jenkins, 760 F.2d 736 (7th Cir. 1985), to support the argument

that a person confined as the result of a civil contempt order

must be released if he can show that his confinement has become

punitive. As the Seventh Circuit noted in Thom, “although

incarceration for civil contempt may continue indefinitely, it

cannot last forever.” Id. at 740 (citing Maggio v. Zeitz, 333

U.S. 56, 76 (1948)). When it becomes clear that a civil

contemnor will never yield to the coercion of incarceration, the

court must release the contemnor. Id. The determination of the

point at which the contemnor should be released is left to the

discretion of the district court, id., and we review the district

court’s order under an abuse of discretion standard. In this

case, however, it is impossible to evaluate the district court’s

exercise of discretion based on its one-sentence order. A Thom

inquiry is necessarily fact-bound, but in this instance the
10

district court did not hold a hearing on the matter or make any

explicit fact findings. 

At this point, Crowson has been incarcerated for more than

four years, and it has been more than two years since his last

motion to vacate the contempt order. While Maggio and Thom do

not set out any specific guidelines for the district court to

follow in addressing such a claim, the ongoing nature of the

claim makes it ripe for reevaluation periodically.

The district court is correct in so far as it disposed of

the first five issues Crowson raises on appeal. However, the

district court failed to address adequately Crowson’s argument

that his confinement has become punitive. Normally, we would

remand this case to the district court and ask it to give reasons

for the judgment it made at the time. However, because of the

continuing nature of the Thom inquiry, we remand with

instructions to evaluate Crowson’s claim based on the current

factual situation. The district court shall hold a hearing and

make explicit findings that will enable us to review the

resulting order. We intimate no view on the merits.

IV. CONCLUSION
11

 For the foregoing reasons, we VACATE the order of the

district court and REMAND for further proceedings consistent with

this opinion.